MAHAVIR SINGH Vs. STATE OF HARYANA AND ANOTHER

JUDGEMENT

(1.) The Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter referred to as the 1975 Act) was enacted to regulate the use of land to prevent ill-planned urbanisation in or around towns in the State of Haryana. The 1975 Act inter alia delineates provisions for involving the private sector in the field of urban development. The State Government, in order to carry out the objects of the 1975 Act has, in exercise of powers vested in it by Sec. 24 of the 1975 Act, framed rules called the Haryana Development and Regulation of Urban Areas Rules, 1976 (hereinafter referred to as the 1976 Rules). The provisions of the 1976 Rules supplement the provisions of the 1976 Act.

(2.) The petitioner was interested in developing his land into a commercial property. Accordingly, on 22.4.2003, the petitioner submitted an application to the Director, Town and Country Planning, Haryana, for the grant of a licence under the 1975 Act, for setting up a commercial colony on 3.01 acres of land situated in the revenue estate of Village Sarhoaul, District Gurgaon (and falling in the residential Sector 28, and included in the final development plan of Gurgaon). The petitioner paid a sum of Rs. 1,52,12,468.00 through drafts enclosed with the aforesaid application, towards various inputs for the grant of the said licence, including licence fee. According to the learned counsel for the petitioner, the prescribed licence fee under the 1975 Act has been depicted in the schedule appended to the 1976 Rules. The Schedule appended in the 1976 Rules was, according to learned counsel, amended through a notification published in the Haryana Government Gazette (Extra Ordinary) dated 1.9.2003. Under the aforesaid notification the licence fee prescribed for commercial/office complexes in residential sectors of gurgaon, was hiked up to Rs. 50.00 Lacs (for 175 floor area ratio), and Rs. 25.00 lacs (for 100 and 150 floor area ratio). The Director, Town and Country Planning, Haryana, addressed a memorandum dated 26.4.2004 to the Director, Urban Estates Haryana, informing him that the Government had taken a decision to grant the petitioner a licence to develop a commercial colony/office complex on 3.01 acres of his land in the revenue estate of Village Sarhoaul, District Gurgaon, and therefore, to release the land of the petitioner from acquisition proceedings subject to the condition that an award in connection therewith had not already been announced. The aforesaid communication also required the Director. Urban Estates Haryana, to intimate his determination to the Director, Town and Country Planning, Haryana, so as to enable him to further process the application of the petitioner, for grant of the licence applied for. A memorandum dated 5.7.2004 was then issued to the petitioner, by the Administrator, Haryana Urban Development Authority (hereinafter referred to as HUDA), calling upon the petitioner to execute an agreement with the HUDA, so as to enable the HUDA to release the petitioner's land measuring 3.01 acres from acquisition. The petitioner is stated to have complied with the requirements expressed in the aforesaid memorandum dated 5.7.2004. Through another memorandum dated 6.7.2004, the Director, Town and Country Planning, Haryana, required the petitioner to fulfil the requirements/conditions laid down in Rule 11 of the 1976 Rules, and also requiring him to pay a further amount of Rs. 3,04,02,000.00 on account of deficiency in license fee. According to the petitioner there was no deficiency in licences fee already deposited, and as such, no further payment should have been demanded on that account. It is sought to be explained on behalf of the petitioner, that the licence fee payable at the time when the petitioner applied for permission to (sic) land for commercial purpose was Rs. 25.00 lacs per gross acre, whereas the petitioner had already deposited licence fee calculated at the rate of Rs. 50.00 Lacs per gross acre, under the mistaken belief that Rs. 50.00 lacs per gross acre was the prescribed fee payable. It clarified that the licence fee at the rate of Rs. 50.00 lacs per gross acre became payable only with effect from 1.9.2003 i.e. the date when the schedule appended to the 1976 Rules was amended. From the aforesaid memorandum dated 6.4.2004 the petitioner learnt for the first time, that the respondents had revised/increased the prescribed licence fee from Rs. 50.00 Lacs per gross acre to Rs. 150.00 lacs per gross acre. The petitioner was, therefore, obviously required to make good the deficiency in terms of the revised/increased licence fee. In order to avoid any confrontation with the respondents, the petitioner without prejudice to the rights and remedies available to him in connection with such revision/increases in licence fee, "decided to pay the same under protest". The aforesaid assertion made by the petitioner in paragraph 43 of the writ petition has not been disputed in the written statement filed on behalf of the respondents. On 2.8.2004, the petitioner, therefore, made a further payment of Rs. 4,46,95,259.00 which included a sum of Rs. 3,04,02,000.00 towards deficiency in licence fee. Having fulfilled all the conditions laid down under Rule 11 of the 1976 Rules, and having paid approximately Rs. 6/- crores, the petitioner was eagerly awaiting the grant of the licence applied for by him. On 4.9.2004, the petitioner submitted further undertakings sought by the authorities. Be that as it may, in continuation of the memorandum dated 6.7.2004, the petitioner was addressed another communication dated 1.12.2004 informing him, that the State Government had taken a decision to provide an option to applicants like the petitioner, so as to enable them to avail 150 floor area ratio instead of the existing 175 floor area ratio, for commercial colonies at Gurgaon. He was, accordingly, informed that since the site of the petitioner, where the proposed commercial complex was to be set up, was abutting the Gurgaon - Mehrauli road, he had an option of choosing a different floor area ratio. The petitioner was also intimated, that the licence fee for 150 floor area ratio had been enhanced to Rs. 2.06/- crores per acre, and for 175 floor area ratio it had been enhanced to Rs. 3.00 crores per acre. He was, required to make his choice in connection with the floor area ratio, and also to deposit the deficiency in licence fee after adjusting the licence fee already paid by him. The petitioner then addressed a representation dated 10.12.2004 to the Chief Minister, Haryana, as well as to the Director, Town and Country Planning Haryana, pointing out that the demand for licence fee at rates higher than the rates prescribed in the schedule appended to the 1976 Rules, for the licence sought by him for 3.01 acres of land, was not only illegal, but was also unjustified.

(3.) The petitioner addressed another application dated 31.5.2004 to the Director, Town and Country Planning, Haryana for the grant of another licence for developing his land measuring 5 acres situated in the Revenue Estate of Village Sarhoaul District Gurgaon (and falling in residential Sector 28, and included in the final development plan of Gurgaon), into a commercial complex. Along with the aforesaid application, the petitioner enclosed by way of drafts an amount of Rs. 2,53,70,200.00 including a sum of Rs. 2.50.00 crores towards licence fee. The Director, Town and Country Planning Haryana, through a memorandum dated 27.9.2004 informed the Director, Urban Estates, Haryana, that the State Government had taken a decision to grant a licence to the petitioner to develop a commercial colony on 5 acres of his land. The Director, Urban Estates, Haryana, was, therefore, required to process the claim of the petitioner, for release of his land from acquisition proceedings, and to intimate the Director, Town and Country Planning, Haryana, the decision taken, so that, further necessary action in connection with the application of the petitioner for the grant of a licence could be taken. The Director, Urban Estates, Haryana, through, a letter dated 29.7.2004 informed the Administrator, HUDA, that the State Government had agreed to release 5 acres of the petitioners land from acquisition proceedings, for the development of a commercial colony. Through a memorandum dated 5.8.2004 the Director, Town and Country Planning Haryana, informed the petitioner, that it was proposed to grant the petitioner a licence to develop a commercial colony, pursuant to his application dated 31.5.2004. The petitioner was, therefore, required to comply with all the conditions laid down in Rule II of the 1976 Rules. Through the aforesaid communication dated 5.8.2004, the petitioner was also called upon to make good the deficiency in licence fee worked out on the revised/increased rates a this behalf the petitioner was informed that a sum of Rs. 150.00 lacs per gross acre was chargeable towards licence fee as against Rs. 50.00 Lacs per gross acre paid by the petitioner. In order to avoid any confrontation with the respondents, the petitioner "without prejudice to his rights qua such revision/increase, decided to pay" the enhanced licence fee claimed from him "under protest". The aforesaid assertions made by the petitioner in paragraph 49 of the writ petition have not been disputed in the corresponding paragraph of the written statement. On 4.9.2004, the petitioner submitted further undertakings in respect of the licence sought by him. Be that as it may, in continuation of the letter dated 6.7.2004, the petitioner was addressed another memorandum dated 1.12.2004 informing him, that the State Government had taken a decision to provide an option to the applicants like the petitioner, so as to enable them to avail 150 floor area ratio, instead of the existing 175 floor area ratio, for commercial colonies at Gurgaon. He was, accordingly, informed that since the site of the petitioner, where the proposed commercial complex was to be set up was abutting the Gurgaon - Mehrauli road, he had an option of choosing a different floor area ratio. The petitioner was also intimated that licence fee for 150 floor area ratio had been enhanced to Rs. 2.06/- crores per acre, and for 175 floor area ratio it had been enhanced to Rs. 3.00 crores per acre. He was, accordingly, required to make his choice in connection with the floor area ratio, and also, to deposit the deficiency in licence fee after adjusting the licence fee already paid by him, within 30 days. The petitioner then addressed a representation dated 10.12.2004 to the Chief Minister, Haryana, as well as to the Director, Town and Country Planning, Haryana, pointing out that the demand for licence fee at a rate higher than the rates prescribed in the schedule appended to the 1976 Rules, for the licence sought him for 5 acres of land, was not only illegal, but was also unjustified.